( 1 ) THE following question has been referred to the Full Bench by our learned brothers Manohar Pershad and Munikannaiah, JJ. : "has the appellate Court power to proceed with the hearing of the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 22 Rule 3 and Order 41, Rule 4 C. P. C. it all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time always assuming that the decree proceeds on a ground common to all the plaintiffs or defendants".

( 2 ) THE aforesaid question appears to have arisen in the following circumstances: The petitioner in C. M. Ps. 6368 and 6369/60 filed a suit against five defendants for a declaration of his title to the suit properties as pattedar and for recovery of possession thereof. The trial Court decreed the suit, and against the judgment and decree the defendants filed A. S. No. 24/1 of 1954-55. After the appeal was filed in the High Court and during its pendency, the decree-holder took out execution proceedings for possession. Against this. order also the judgment-debtors filed an appeal, being A. A. O. 127/1 of 1954-55. This appeal as well as the first appeal A. S. 24/1 of 1954-55 were-heard together by the same Bench which has referred this question. It allowed A. S. 24/1 of 1954-55, set aside the judgment and decree of the Court Below and remanded the case to the trial Court with a direction that it should, after giving an opportunity to the defendants to summon their witnesses and recalling the plaintiffs witnesses for cross-examination and also after recording the evidence of the plaintiffs witnesses, dispose of the case according to law. In this view, A. A. O. 127/1 of 1954-55-was also allowed. When the case went back to the Court of the Subordinate Judge, Karimnagar, and was posted for fresh trial, it was represented to it that defendants 2, 4 and 5 died even during the pendency of the appeals in the High Court. Thereupon, the Subordinate Judge adjourned the case for steps to bring the legal representatives of the deceased defendants, on record. The plaintiff, however, filed I. A. 144/60 stating that as defendants 2, 4 and 5 died during the pendency of the appeal and as the other appellants viz. , defendants 1 and 3 did not report to the High Court about the death of those defendants prior to the hearing of the appeal, the appeal before the High Court abated in its entirety, especially so, as there was a joint decree against all the defendants. The Subordinate Judge sent a report on 9-12-1960 to the High Court praying for necessary directions. The plaintiff also tiled C. M. P. Nos. 6368 and 6369 of 1960 for declaring the judgments passed respectively in A. A. O. No. 127/1 of 1954-55 dated 30-3-1960 and in A. S. No. 24/1 of 1954-55 dated 30-3-1960 as nullities.

( 3 ) THE Bench, which heard the case, observed that the point involved was once referred for consideration by a Division Bench to a Full Bench; but when the matter came up before the Full Bench no final opinion was given as it was then considered that that question was not necessary for the determination of that appeal. As that point had remained without any authoritative pronouncement thereon, our learned brothers considered that, in the circumstances, as an important question of law has arisen directly in the case, it should be considered by a Full Bench.

( 4 ) IN the question that has been referred, a reference to Order 22, Rule 3 seems to have been inadvertently made along with Order 41 Rule 4 C. P. C. We say that because Order 22 Rule 3 neither deals with the power of an appellate Court nor does it mention anything about reversing or varying the decree. The reference to this provision (Order 22 Rule 3) is more appropriate after the words "and no substitution is effected within tune".

( 5 ) AT the outset, we may state that there has been a divergence of opinion in the several High Courts in India as also in the